ANTI-HUMAN TRAFFICKING ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
PROHIBITION OF HUMAN TRAFFICKING

   3.   Prohibition of trafficking in persons

   4.   Debt bondage

   5.   Prohibition of destruction, confiscation, possession and concealment of documents

   6.   Using the services of victim

   7.   Conduct facilitating trafficking in persons

   8.   Internet service provider to report trafficking sites

   9.   Smuggling of persons

   10.   Harbouring, concealing, etc. of offender

   11.   Aiding, abetting, etc., of offender

   12.   Attempts to commit offence

   13.   Offences by institution

   14.   Directing institution engaged in offence under Act

   15.   Fundraising and other support

   16.   Use and possession of property in furtherance of offence under Act

   17.   Assisting in retention or control of funds for commission of offence under Act

   18.   Support services for offences under Act

   19.   Money laundering

   20.   Co operation with police officers

   21.   Non defences

PART III
IDENTIFICATION AND PROTECTION OF VICTIM

   22.   Guiding principles when deciding question whether person is victim

   23.   Declaring country as country of origin or destination

   24.   Director of Public Prosecutions to decide whether victim should be prosecuted

   25.   Reporting and referral of victim

   26.   Filing of complaint with police officer

   27.   Police assistance

   28.   Receipt of complaint by police officer

   29.   Arrest by police officer

   30.   Arrest without warrant by private person

   31.   Child who is victim found in Zambia

   32.   Deportation of victim prohibited

   33.   Suspension of deportation

   34.   Temporary residency

   35.   Permanent residency

   36.   Repatriation of victim from Zambia

   37.   Assistance to foreign victim

   38.   Repatriation of victim to Zambia

   39.   Escorting of child victim

PART IV
CENTRES FOR VICTIMS

   40.   Establishment of centers for victims

   41.   Minimum norms and standards

   42.   Programme offered by centre for child victims

   43.   Programme offered by centre for adult victims

   44.   Assessment of victim

   45.   Tracing of family of trafficked person

   46.   Rehabilitation of victim

   47.   Provision of health care

PART V
FORFEITURE OF PROCEEDS OF HUMAN TRAFFICKING

   48.   Interpretation

   49.   Attachment of property

   50.   Property tracking

   51.   Seizure and detention of funds used in furtherance of offence under Act

   52.   Forfeiture

   53.   Implementation of forfeiture orders

   54.   Remuneration of receiver

   55.   Certificate to forfeiture

   56.   Protection of creditors

   57.   Protection of insolvency

PART VI
COMPENSATION

   58.   Compensation to victim

   59.   Compensation to State

   60.   Payment of compensation

   61.   Recovery of compensation

   62.   Failure to make compensation

PART VII
INVESTIGATIONS

   63.   Power to obtain financial information

   64.   Procedure

   65.   Criteria for order

   66.   Meaning of financial institution

   67.   Customer information

   68.   Disclosure of information

PART VIII
PORT AND BORDER CONTROLS

   69.   Port and border controls

   70.   Interpretation

   71.   Information

   72.   Questioning

   73.   Stopping of persons and vehicle

   74.   Searching of vessels and aircraft

   75.   Searching of persons

   76.   Examining of goods

   77.   Detention of property

   78.   Designation of control area

   79.   Control area facilities

   80.   Information cards

   81.   Information from owner of vessel or aircraft

   82.   Legitimacy and validity of documents

   83.   Offences

PART IX
DEPORTATION ORDERS

   84.   Making and effect of deportation orders

   85.   Duration

   86.   Notice of order

   87.   Directions for removal

   88.   Detention pending removal

   89.   Provisions supplementary to detention

   90.   Offences in connection with deportation order

PART X
MUTUAL LEGAL ASSISTANCE AND EXTRADITION

   91.   Exchange of information

   92.   Other requests from foreign States

   93.   Requests to foreign States

   94.   Form of request

   95.   Extradition

PART XI
PREVENTION OF TRAFFICKING IN PERSONS

   96.   Public awareness

   97.   Trafficking of child by parent, guardian or other person who has parental responsibilities and rights in respect of child

   98.   International co operation

   99.   Extra territorial jurisdiction

PART XII
COMMITTEE ON HUMAN TRAFFICKING

   100.   Establishment of Committee on Human Trafficking

   101.   Functions of Committee

PART XIII
HUMAN TRAFFICKING FUND

   102.   Establishment of Fund

   103.   Administration and management of Fund

   104.   Accounts and audit

   105.   Statement of income and expenditure

PART XIV
GENERAL PROVISIONS

   106.   Powers to stop and search

   107.   Evidence

   108.   Rules of court

   109.   Proceedings in camera

   110.   Regulations

      SCHEDULE

AN ACT

to provide for the prohibition, prevention and prosecution of human trafficking; provide for the filing of and dealing with matters related to human trafficking; establish the Committee on Human Trafficking and provide for its powers and functions; establish centers for victims of human trafficking; establish the Human Trafficking Fund; domesticate the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime; and provide for matters connected with or incidental to the foregoing.

[26th September, 2008]

Act 11 of 2008.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Anti-Human Trafficking Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

“abuse of vulnerability” in relation to trafficking, means such physical or psychological abuse that leads a person to believe that the person has no reasonable alternative but to submit to exploitation, and is not limited to taking advantage of the vulnerabilities of that person resulting from—

      (a)   the person having entered Zambia illegally or without proper documentation;

      (b)   pregnancy;

      (c)   any disability of the person;

      (d)   addiction to the use of any substance; and

      (e)   reduced capacity to form judgments by virtue of being a child;

“centre for victims” means a facility for the provision of temporary accommodation in accordance with a programme referred to in sections 42 and 43 suited for the needs of victims admitted to the facility;

“child” means a person under the age of eighteen years;

“child labour" includes all forms of slavery or practices similar to slavery such as—

      (a)   the sale of a child;

      (b)   trafficking of a child for the purpose of engaging the child in work away from home and from the care of the child’s family, in circumstances within which the child is exploited;

      (c)   debt bondage or any other form of bonded labour;

      (d)   serfdom; and

      (e)   forced or compulsory labour, including forced or compulsory recruitment of a child for use in armed conflict;

“coercion” means violent psychological coercion and other forms of non violent psychological coercion such as—

      (a)   a threat of serious harm to a person or another person;

      (b)   any scheme, plan or pattern; or

      (c)   the abuse or threatened abuse of the legal process; intended to cause a person to believe that, if the person does not perform labour or provide a service, the person or another person will suffer serious harm;

“Committee” means the Committee on Human Trafficking established under section 100;

“debt bondage” means the status or condition that arises from a pledge by a person—

      (a)   of the person’s personal services; or

      (b)   of the personal services of another person under that person’s control; as security for a debt owed, or claimed to be owed, including any debt incurred or claimed to be incurred after the pledge is given, by that person if—

      (i)   the debt owed or claimed to be owed is manifestly excessive;

      (ii)   the value of those services as reasonably assessed is not applied toward the liquidation of the debt or purported debt; or

      (iii)   the length and nature of those services are not respectively limited and defined;

“Director of Public Prosecutions” means the person appointed as such under the Constitution;

“exploitation” includes—

      (a)   all forms of slavery or practices similar to slavery, including debt bondage or forced marriage;

      (b)   sexual exploitation;

      (c)   servitude;

      (d)   forced labour;

      (e)   child labour; and

      (f)   the removal of body parts contrary to the Human Tissue Act;

“forced labour” means labour or services obtained or maintained through threats, the use of force, intimidation or other forms of coercion or physical restraint;

“Fund” means the Human Trafficking Fund established under section 102;

“guardian” in relation to a child, includes any person who has, for the time being, the charge of or control over the child;

"immigration officer" has the meaning assigned to it under the Immigration and Deportation Act;

“labour inspector” has the meaning assigned to it under the Employment Act;

“legal practitioner” has the meaning assigned to it in the Legal Practitioners Act;

“medical practitioner” means a person registered as such under the Medical and Allied Professions Act;

“parent” includes guardian;

“person” includes a partnership;

“police officer” has the meaning assigned to it under the Zambia Police Act;

“practices similar to slavery” include—

      (a)   debt bondage;

      (b)   serfdom;

      (c)   any institution in which, or practice under which—

      (i)   a woman who does not have the right to refuse is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person;

      (ii)   the husband of a woman, his family or his clan has the right to transfer her to another person for value received or otherwise; or

      (iii)   a woman, on the death of her husband, is liable to be inherited by any other person; or

      (d)   any institution in which, or practice under which a child is delivered by either one or both of the child’s natural parents or by the child’s guardian to another person, whether for reward or not, for the purpose of the exploitation of the child;

“premises” includes a vehicle, an offshore installation and any other structure or shelter that is moveable;

“Protocol” means the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children;

“public officer” means a person serving in the Public Service;

“Public Service” has the meaning assigned to it in the Public Service Pensions Act;

“servitude” means a condition in which the labour or services of a person are provided or obtained through threats of serious harm to that person or another person, or through any scheme, plan or pattern intended to cause the person to believe that, if the person does not perform such labour or services, that person or another person would suffer serious harm;

“sexual exploitation” means the participation of a person in prostitution or other sexual acts, or the production of pornographic material as a result of being subjected to threat, force, intimidation or other forms of coercion or any other practice in terms of which it cannot be said that the person participated voluntarily;

“slavery” means the exercise of any or all of the powers attaching to the right of ownership over a person; "smuggling" means the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a country of which the person is not a national or permanent resident;

“traffic” means to recruit, transport, transfer, harbour, receive or obtain a person, within or across the territorial boundaries of Zambia, by means of—

      (a)   any threat or use of force or other forms of coercion;

      (b)   abduction;

      (c)   fraud or deception;

      (d)   false or illegal adoption of a child contrary to the Adoption Act or any other written law;

      (e)   the destruction, concealment, removal, confiscation or possession of any passport, immigration document or other official identification document of a person;

      (f)   the abuse or threatened abuse of the law or legal process or any other form of abuse of power or of a position of vulnerability; or

      (g)   the giving or receiving of payments or benefits to achieve the consent of the person;

for the purpose of exploitation;

“victim” means a person who has suffered harm, including mental and physical injury, emotional suffering, economic loss or substantial impairment of the person’s fundamental human rights through acts that are a violation of this Act;

“welfare officer” means a social welfare officer employed in the public service; and

“worst forms of labour” has the meaning assigned to it under the Employment of Young Persons and Children Act.

PART II
PROHIBITION OF TRAFFICKING

3.   Prohibition of trafficking in persons

   (1) Subject to sub-sections (2) to (11), a person who intentionally and unlawfully trafficks another person commits an offence and is liable, upon conviction, to imprisonment for a term of not less than twenty years and not exceeding thirty-years.

   (2) Where the victim of an offence under sub-section (1) is a child, the offender is liable to imprisonment for a term of not less than twenty-five years and not exceeding thirty-five years.

   (3) Where the victim of an offence under sub-section (1) is trafficked for the purpose of sexual exploitation, the offender is liable to imprisonment for a term of not less than twenty-five years and may be liable to imprisonment for life.

   (4) Where the victim is trafficked for the purpose of engaging the victim in the worst forms of labour or child labour, the offender is liable to imprisonment for a term of not less than twenty-years and not exceeding thirty-five years.

   (5) Where the victim of an offence under sub-section (1) is abducted, the offender is liable to imprisonment for a term of not less than twenty-five years and not exceeding thirty-five years.

   (6) Where the trafficking results in the death or grievous bodily harm of a victim, the offender may be liable to imprisonment for life.

   (7) Where the offender is the natural parent, guardian or any other person who has parental responsibilities and rights in respect of a child and the offender trafficked or permitted the trafficking of the child, the offender is liable to imprisonment for a term of not less than twenty-five years and not exceeding thirty-five years.

   (8) Where the offender is a public officer and uses the person’s office in furtherance of an offence under this section, the offender is liable to imprisonment for a term of not less than twenty-five years and not exceeding thirty-five years.

   (9) Where the offender is a person who is concerned in the management of an institution or organised criminal group engaged in trafficking in persons, the offender is liable to imprisonment for a term of not less than twenty-five years and not exceeding thirty-five years.

   (10) Where the offender is charged with and convicted by a court for the commission of five or more counts of human trafficking, the offender is liable to imprisonment for a term of not less than twenty-five years and not exceeding thirty-five years.

   (11) Where the victim is trafficked for the purpose of the removal of the victims body parts contrary to the Human Tissue Act, the offender is liable to imprisonment for a term of not less than twenty-five years and not exceeding thirty-five years.

   (12) In order to establish the liability, in terms of sub-section (1), of an employer or principal, the conduct of an employee or agent or any other person acting on behalf of the employer or principal may be attributed to the employer or principal if that person is acting—

      (a)   within the scope of the employee’s or agent’s employment;

      (b)   within the scope of the employee’s or agent’s actual or apparent authority; or

      (c)   with the express or implied consent of a director, member or partner of the employer or principal.

   (13) Sub-section (12) does not exclude the liability of an employee or agent of or any other person acting on behalf of the employer or principal for committing the offence of trafficking in persons.

   (14) A finding by a court that an employer or principal has contravened sub-section (1) shall constitute a ground for revoking the license or registration of the employer or principal to operate.

4.   Debt bondage

A person who intentionally and unlawfully engages in conduct that causes another person to enter into a situation of debt bondage commits an offence and is liable, upon conviction, to imprisonment for a term of not less than fifteen years and not exceeding twenty-five years.

5.   Prohibition of destruction, confiscation, possession and concealment of documents

A person who intentionally and unlawfully destroys, confiscates, possesses, conceals or tampers with any actual or purported identification document, passport or other travel document of a victim in furtherance of the offence of trafficking in persons commits an offence and is liable, upon conviction, to imprisonment for a term of not less than fifteen years and not exceeding twenty five years.

6.   Using services of victim

   (1) A person who intentionally and unlawfully benefits, financially or otherwise, from the services of a victim or who uses or enables another person’s usage of the services of a victim commits an offence and is liable, upon conviction, to imprisonment for a term of not less than ten years and not exceeding twenty-five years.

   (2) Where the services used or procured constitute—

      (a)   sexual exploitation; or

      (b)   the worst forms of labour;

the offender is liable to imprisonment for a term of not less than fifteen years and not exceeding twenty-five years.

7.   Conduct facilitating trafficking in persons

   (1) A person who—

      (a)   transports a victim or is in charge of a conveyance which facilitates any offence under this Act;

      (b)   intentionally and unlawfully leases or subleases or allows any room, house, building or premises to be used for the purpose of harbouring a victim; or

      (c)   advertises, publishes, prints, broadcasts, distributes or causes the advertisement, publication, printing, broadcast or distribution of information that suggests or alludes to trafficking by any means, including the use of the Internet or other information technology; commits an offence and is liable, upon conviction to the same penalties as if the person had been convicted of the offence.

   (2) It shall be a defence for a person charged with an offence under sub-section (1) to satisfy the court that that person did not know and had no reasonable cause to believe that the premises leased or sublet were being used for the purpose of facilitating the commission of an offence under this Act.

8.   Internet service provided to report trafficking sites

   (1) An Internet service provided operating in Zambia and who becomes aware of any site on its server that contains information in contravention of paragraph (c) of sub-section (1) of section 7 shall report to the police.

   (2) An Internet service provider who fails to comply with the provisions of sub-section (1) commits an offence and is liable, upon conviction, to a fine not exceeding three hundred thousand penalty units or to imprisonment for a term not exceeding three years, or to both.

9.   Smuggling of persons

   (1) Subject to sub-section (2) a person who smuggles another person into or out of Zambia, participates in smuggling or who consents to being smuggled commits an offence and is liable, upon conviction, to imprisonment for a term of not less than fifteen years and not exceeding twenty years.

   (2) Where the smuggling results in the death of the person being smuggled, the offender may be liable to imprisonment for life.

   (3) A person who produces, provides, procures or possesses a fraudulent travel or identity document in furtherance of the offence of smuggling commits an offence and is liable, upon conviction, to imprisonment for a term of not less than ten years and not exceeding fifteen years.

10.   Harbouring, concealing, etc. of offender

A person who harbours, conceals or provides a safe haven to any person who commits an offence under this Act, commits an offence and is liable, upon conviction, to imprisonment for a term of not less than two years and not exceeding five years.

11.   Aiding, abetting, etc. of offender

A person who aids, abets, counsels, procures, incites or solicits the commission of an offence under this Act, commits an offence and is liable, upon conviction, to the same penalties as if the person had been convicted of the offence.

12.   Attempts to commit offence

A person who attempts to commit an offence under this Act commits an offence and is liable, upon conviction, to imprisonment for a term of not less than ten years and not exceeding twenty years.

13.   Offences by institution

   (1) Where an offence is committed by an institution and it is proved that the offence—

      (a)   was committed with the consent or connivance of an officer of the institution; or

      (b)   was attributable to neglect on the part of an officer of the institution;

the officer and the institution shall be guilty of the offence.

   (2) In this section—

      (a)   in the case of an institution which is a body corporate,

"officer" includes—

      (i)   a director, manager or Secretary;

      (ii)   a person purporting to act as a director, manager or Secretary;

      (iii)   if the affairs of the body are managed by its members, a member; and

      (iv)   any other person concerned in the management of the body corporate;

      (b)   in the case of an institution which is a partnership, "officer" means a partner; and

      (c)   in the case of an institution which is an unincorporate body other than a partnership, "officer" means a person concerned in the management or control of the institution.

14.   Directing institution engaged in offence under Act

A person who directs the activities of an institution which is involved in the commission of an offence under this Act commits an offence and is liable, upon conviction, to the same penalties as if the person had been convicted of the offence.

15.   Fundraising and other support

   (1) A person who—

      (a)   invites another to provide or make available money or other property; and

      (b)   intends that any money or other property should be used for the furtherance of an offence under this Act; commits an offence and is liable, upon conviction, to the same penalties as if the person had been convicted of the offence.

   (2) A person who—

      (a)   provides or makes available money or other property; and

      (b)   knows that the money or other property shall or may be used for the furtherance of an offence under this Act; commits an offence and is liable, upon conviction, to the same penalties as if the person had been convicted of the offence.

   (3) A reference in this section to the provision of money or other property is a reference to its being given, lent or otherwise made available, whether or not for consideration.

16.   Use and possession of property in furtherance of offence under Act

   (1) A person who knowingly uses, or who causes or permits any other person to use, money or other property for the furtherance of an offence under this Act commits an offence and is liable, upon conviction, to the same penalties as if the person had been convicted of the offence.

   (2) A person who possesses money or other property and intends that it should be used for the furtherance of an offence under this Act, commits an offence and is liable, upon conviction, to the same penalties as if the person had been convicted of the offence.

17.   Assisting in retention or control of funds for commission of offence under Act

   (1) A person who enters into or becomes involved in an arrangement whereby the retention or control by, or on behalf of, another person of funds for the furtherance of an offence under this Act is facilitated—

      (a)   by concealment;

      (b)   by removal from the jurisdiction;

      (c)   by transfer to nominees; or

      (d)   in any other way;

commits an offence and is liable, upon conviction, to imprisonment for a term of not less than ten years and not exceeding twenty years,

   (2) It is a defence for a person charged with an offence under this section to satisfy the court that the person did not know and had no reasonable cause to suspect that the arrangement related to funds for the furtherance of an offence under this Act.

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.